from the we-knew-she-belonged-to-the-public dept

I knew I belonged to the public and to the world, not because I was talented or even beautiful, but because I had never belonged to anything or anyone else.

But... that's not quite how the lawyers representing her estate felt about things. A few years ago, we wrote about how her estate had lost a legal fight trying to claim publicity rights in photos of Monroe. The case involved the question of publicity rights after death. As we recently discussed, some states allow publicity rights to live on after death, others do not. When Monroe died, the various states that could "claim" her (NY, California and Indiana) did not have laws that allowed publicity rights to live on after death. So that should have been the end of it.

But... California (due to pressure from plenty of folks in Hollywood) eventually changed its law to allow posthumous publicity rights. And so, Monroe's estate started suing. There was just one (major) problem. When Monroe had died, her estate had gone to great lengths to insist (no, really!) that she did not live in California, but in New York. Why? Because California had a massive estate tax, so the estate would have had to pay that if it was determined that she resided in California. They successfully convinced the world that she was a NY resident, and so they got out of paying California's estate tax.

However, when this issue of publicity rights showed up 40 years later, the estate suddenly changed its story, and wanted to insist that she really lived in California, but just for the purpose of publicity rights. As noted above, the courts didn't buy it -- in part due to the earlier arguments, but also because at the time of death it wouldn't have mattered, and the publicity rights had gone away. That resulted in the California state legislature passing a law (led by a state Senator, Sheila Kuehl, who had been a child actor, naturally) to say that dead celebrities could reclaim their publicity rights if they had died before posthumous publicity rights were allowed. Naturally, Senator Kuehl attached this important legal change to a bill that was originally about stem cell research. You see the connection.

Because of that law, the courts reviewed the case and still said: sorry, but Monroe did not live in California according to Monroe's own estate's earlier arguments. That ruling was appealed, and now the appeals court has rejected the estate's attempt to posthumously move Monroe once again, saying that the arguments made decades ago that she resided in New York bar her estate from trying to change those facts to suit their wallets today. The court more or less laughs at the argument that Monroe's lawyer was somehow mistaken or uninformed when originally claiming Monroe was a New York resident, and even suggests that such claims may not just be mistakes, but may be willful misrepresentations to the court:

Monroe LLC also suggests that it has
always believed that Monroe died domiciled in California,
and that Frosch was simply mistaken in his belief and representations
because he did not have access to some documents
that allegedly contradict the materials and declarations he
relied upon. This assertion by Monroe LLC is dubious, at
best. Frosch had contemporaneous access to people knowledgeable
about Monroe’s intentions, including Ralph L. Roberts,
her close friend and confidant and reportedly the last
person to see her alive. To the extent that there was any
debate, Frosch represented, with significant evidentiary support,
that Monroe’s intention was to remain domiciled in New
York, though she temporarily relocated to California for a
movie shoot. Another possibility, for which we have insufficient
evidence, is that Monroe LLC’s present position on
Monroe’s domicile is a knowing misrepresentation, or tantamount
to a fraud on the court. In light of this irreconcilable
conflict between diametrically opposed representations about
Monroe’s intended domicile, the district court’s determination
that Frosch intentionally misled the courts is supported by
“inferences that may be drawn from the facts in the record”
and is therefore not an abuse of discretion.

The court is pretty clear, and at times harsh. Not only did it use the quote above to note that her persona now is, in fact, part of the public, but it also used another quote of hers to describe her estate's questionable claims in the case:

This is a textbook case for applying judicial estoppel.
Monroe’s representatives took one position on Monroe’s
domicile at death for forty years, and then changed their position
when it was to their great financial advantage; an advantage
they secured years after Monroe’s death by convincing
the California legislature to create rights that did not exist
when Monroe died. Marilyn Monroe is often quoted as saying,
“If you’re going to be two-faced, at least make one of
them pretty." There is nothing pretty in Monroe LLC’s
about-face on the issue of domicile. Monroe LLC is judicially
estopped from taking the litigation position that Monroe died
domiciled in California. Our conclusion in this regard is
guided by the need to preserve the dignity of judicial proceedings
that have taken place over the last forty years and to discourage
litigants from “playing fast and loose with the
courts.”

Re:

I think they should allow them the publicity rights claim. Then hit them with a judgement for 40 years of back taxes on the publicity rights as applicable tax fraud. I also thick the estates current representation should be held personally and professionally liable for not paying appropriate taxes based on the publicity rights that didn't actually exist for most of the 40 years. If the state of California can collect it might take a small bite out of the state deficit.

Re:

Oh I am so behind this plan, let them get what they want(or what they think they want), and then fine them into oblivion and watch them try and scramble to stay out of jail for 40 years of tax evasion/fraud. Would be a perfect lesson for those that try and game the system, and what's more, the estate's own argument is basically making the case against them.

If they're trying to claim now that she always 'lived' there, then that would mean that despite the fact that she has 'lived' in NY for all those years they still should have been paying all the relevant taxes, and didn't. Not only that, but they lied about why they didn't have to pay the taxes. I'm fairly sure at least one of those things is a jailable offense

Re: Re:

Yep, I would have given them the choice: either go to jail for perjury, or go to jail even longer for tax fraud and have the entire estate declared insolvent to pay 40 years of back taxes and fees, with interest!

Logic and justice wins again

If this case had made it through, I bet next up would be some other "LLC" saying that their dead clients now public domain works weren't meant to be published and copyrighted before the Sonny Bono Copyright Term Extension Act went into effect.

"It was a mistake your honor. So if you could just, modify my dead clients public domain works with a new copyright date so I could make people pay, that would be great."

Euphemistically speaking

My wife's grandmother used to say things like, "You can have that necklace after I move to California," although she was referring less to a cross-country move and more cross-dimension. Marilyn, of course, has already moved to California, where, no doubt, she's met my wife's grandmother.